[T]he movie ‘What Women Want’ depicted a pinball machine in the background of a scene. The owner of rights in the pinball machine sued the producer, Paramount, for copyright and trademark. The court said “de minimis non curat lex.”

Judge Chin ordered “costs” (basically the filing fee and other trivial amounts) awarded to the defendant, but explicitly stated that plaintiff was not required to pay the defendant’s attorneys’ fees. For while the law does not concern itself with trifles, the law unfortunately considers trifling the legal fees expended by those forced to defend manifestly meritless causes — even under a statute such as the Copyright Act which permits fee-shifting. And that remains no small thing at all.

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Wait, you address the copyright claim. But what about the trademark claim? The copyright claim is “merely” trivial, but it seems to me that the trademark claim is utterly frivolous, and also could have, and should have, resulted in a fee award to the defendants. I know that the Lanham Act is interpreted to provide for fee awards only in “exceptional” cases, but this case presents a pretty egregious abuse of trademark litigation.

What I wonder is why the movie set included the pinball machine. It may be just “background” but they probably picked a machine they thought looked good. Why should they not pay the pinball machine creators?

They probably also chose lighting that looked good, clothing that looked good, tables, chairs, carpeting… To pay a licensing fee to every object that a camera passes would make it impossible to make films. Life has stuff in it.

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